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Law Professors Author Top US Privacy Papers

Paul Schwartz
Paul Schwartz

By Leslie A. Gordon

The Future of Privacy Forum, a Washington, D.C.-based think tank, has chosen three papers authored by Berkeley Law professors to be among its 2013 Privacy Papers for Policy Makers. The forum—comprised of industry, academic and legal leaders—selects a handful of scholarly papers each year that are considered the most influential for policy makers in the privacy arena.

The annual selection is a widely recognized indicator of scholarly excellence in privacy law. Winning articles are circulated among top policy makers, including members of Congress and leaders of the Federal Communications Commission and the Federal Trade Commission.

“Berkeley Law is considered one of the best—if not the number one—privacy program in the world,” said Professor Paul Schwartz, an expert on international information privacy. “Lawyers, students and professors come here from Canada, Portugal, South America, Korea and Taiwan to study privacy law. This is the place to come. The selection of our three papers is an indication that our scholarship is really leading the pack.”

Professor Schwartz received double honors this year: two of his papers were chosen. His Information Privacy in the Cloud explains how the rise in cloud computing challenges established legal paradigms related to privacy. Specifically, as computing activities shift from country to country depending on load capacity and other factors, the legal distinction between national and international data processing is less meaningful and raises complicated jurisdictional issues.

To bridge international differences among privacy laws, Schwartz’s other winning paper, Reconciling Personal Information in the US and EU(co-written with Daniel Solove, a George Washington University Law School professor), argues for a tiered approach regarding “personally identifiable information,” or PII. Schwartz said the definition of PII is the cornerstone for when privacy law applies.

“It’s like an on-off switch for privacy protection, and there are really huge consequences of having different definitions” as the U.S. and E.U. systems try to become “interoperable,” Schwartz said.

Constellation of privacy scholars

That so many Berkeley Law papers were selected by the Future of Privacy Forum is consistent with the fact that “we generally have the best constellation of privacy scholars of any law school or university in the U.S.,” said Professor Kenneth Bamberger, a privacy regulation expert. His paper, Privacy in Europe: Initial Data on Governance Choices and Corporate Practices, co-authored with law and School of Information Professor Deirdre Mulligan, was also selected.

Bamberger and Mulligan
Kenneth Bamberger and Deirdre Mulligan

Bamberger and Mulligan use qualitative empirical inquiry—including interviews with, and questionnaires completed by, corporate privacy officers, regulators and other privacy actors in France, Germany and Spain—to identify ways that privacy protection is implemented in different jurisdictions. It also examines the social, market, and regulatory forces that drive privacy choices.

Because of data ubiquity and “big data,” the definition of privacy that has prevailed in the political sphere—namely, individual control over the disclosure and use of personal information—has offered an inapt standard for privacy protection, Bamberger argues. He advises policymakers to take a far more granular analysis of differences in national practice related to privacy. At the same time, “it’s important to preserve [national] discretion,” Bamberger explains.

The nod toPrivacy in Europe makes this the second year in a row that Mulligan, a faculty director of the Berkeley Center for Law and Technology, has received recognition from the privacy forum. Her 2012 award-winning paper, Bridging the Gap Between Privacy and Design, co-authored with doctoral student Jennifer King, explored the discrepancy between privacy and design in the context of “lateral privacy” (that is, privacy issues arising among users of a service rather than from the service provider) on social networking sites and other platforms.

Specifically, Mulligan and King examined Facebook’s 2006 News Feed introduction and identified problems in the “informational self-determination” approach that, they argued, limits responsiveness to lateral privacy design decisions.

The deep bullpen of so many award-winning privacy professors at one law school “is like the famous Yankees line up,” said Schwartz. But more than just flash, the caliber of the privacy program emerges through its series of influential scholarly works.

“We’ve built a prominent program on the leading edge of technology law. As firms are adding privacy professionals, it really helps our students gain a competitive advantage” in the legal market, Schwartz said.

Since the awards were first given out in 2010, a number of Berkeley Law faculty and scholars have won each year, including papers co-authored by Chris Hoofnagle, Su Li, and King.

"Privacy scholarship from Berkeley Law professors not only advances legal theory, but also has a substantial impact on policy makers, technologists, and industry professionals," says Jules Polonetsky, executive director of the Future of Privacy Forum. "These papers provide important contributions to privacy debates at home and abroad."